Doctrine of Lis Pendens - A brief introduction:-

 

Doctrine of Lis Pendens - A brief introduction:-

 

Doctrine - As long as a genuinely contested suit is pending disposal, the parties thereto cannot legally transfer or otherwise deal with the subject matter of the suit (immovable property) except with the permission of the Court concerned. Section 52 of the Transfer of Property Act:-

52. Transfer of property pending suit relating thereto.—

During the pendency, in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government, of any suit or proceeding, which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any

other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.

Explanation. — For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force. Objects of Section 52 of the Transfer of Property Act:-

● The primary object is to ensure the maintenance of status quo till the disposal of the suit, in one way or the other.

● It also intends to curb the parties to a litigation from circumventing the jurisdiction of a court by means of entering into private dealings which may have the effect of removing the subject-matter of litigation from the ambit of the court's power to decide a pending dispute or of frustrating its decree. Effects of Section 52 of the Transfer of Property Act:-

● The effect of this provision makes both the transfer and

the transferee subject to whatever decree that may be

passed in the suit even though the transferee might not

be a party to it.

● The further effect this provision is that a discretionary

power has been conferred on the Court so that it could

to permit either of the parties to the suit to make any

transfer pending disposal of the suit. Conditions requisite to attract Section 52 of the T.P Act:-

1. There must be a suit or proceeding pending in a Court of competent jurisdiction.

2. The suit or proceeding must not be collusive.

3. The litigation must be one in which right to immovable property is directly and specifically in question.

4. There must be a transfer of or otherwise dealing with the property in dispute by any party to the litigation.

5. Such transfer must affect the rights of the other party that may ultimately accrue under the terms of the decree or order. Kinds of transactions that fall within the purview of Section 52 of T.P.Act:-

“the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein”

1. Sale;

2. Release;

3. Exchange;

4. Gift;

5. Will;

6. Lease;

7. Mortgage;

8. Grant of Licence;

9. Constructions in or alterations to the immovable property. Validity of transfer effected in violation of Section 52 of TP Act:-

1. Validity as between the Defendant/Transferor and the Purchaser Pendente Lite; and

2. Validity as between the Plaintiff/Rival-Claimant and the Purchaser Pendente Lite. In G.T. Girish Vs Y. Subba Raju 2022 LiveLaw (SC) 61:-

Validity as between the Defendant/Transferor and the Purchaser:-

“A transfer which is made lis pendens, it is settled law, is not a void document. It does create rights as between the parties to the sale. The right of the party to the suit who conveys his right by a sale is extinguished.

All that Section 52 of the Transfer Property Act provides is that the transfer which is made during the pendency of the proceeding is subjected to the final result of the litigation.”

Validity as between the the Plaintiff/Rival-Claimant and the Purchaser:-

“A transfer which is made lis pendens, it is settled law, is not a void document. It does create rights as between the parties to the sale. The right of the party to the suit who conveys his right by a sale is extinguished.

All that Section 52 of the Transfer Property Act provides is that the transfer which is made during the pendency of the proceeding is subjected to the final result of the litigation.”